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Expert panel debates the proposed new Belgian 5G law

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The Belgian National Security Council has proposed a new law which includes a series of additional security measures regarding the rollout of 5G mobile networks. The capability of 5G is immense and will affect every area of the economy, and every government has a duty to ensure that any deployed 5G technology is safe to use as a communication medium by its citizens and the government. At an online roundtable debate organized today (17December), by EU Reporter, interested experts and commentators debated the issue.

Yvan Desmedt, a lawyer specialising in competition and telecom law, told the debate “What we see in the regulatory proposals refer to what would qualify as what is referred to as a high-risk vendor, but you actually see that the criteria which are being proposed are extremely vague, leave a huge margin of discretion to the to the government, and that is, I think, a real concern to us.

"Because that margin of discretion, it first of all leads to unpredictability and absence of legal certainty.

"It also means that your ability to subsequently put the governmental decision to judicial scrutiny is something which is going to be very difficult.

"So, the concept of national security concern is a little bit like a journey that is being played now. And which may also be used forin a broader fashion in the context of, you know, tensions and trade relationships and others to advocate also or to push behind that argument of national security.”

Mike Parr, of PWR Ltd, specialising in Network Research, asked the question: “Apologies for being controversial, but it is the fact that the security services wants to intercept mobile traffic. I'd be interested to hear the definition of security. Now, what do we mean by it? Is it to protect somebody from looking at or to protect somebody that's using it to either send the recipe to somebody else?

"I don't know, I've not seen a definition. I'd be interested to hear why.”

Professor Georges Ataya, Academic Director of Solvay Business School and partner in Ataya & Partners, spoke of the implications to information security.

He said: “I think we have to look at what is our objective from what we talk about in relation to security. Security ensures that we guarantee confidentiality, integrity, availability, non-repudiation, etc.

"What is important for us is the national security. There are specific objectives on how to protect national security, which means no backdoors, no eavesdropping, etc.

"Now, there are the business objectives, or nationwide security objectives that I just mentioned, no backdoor, eavesdropping etc. and we can specify those we can list and inventory those and for each one of those we can try to get a positive assurance.

"And this is the way we act, we the security professionals, which means that we identify what is the risk, what is within the architecture that we have, whether it is business related architecture, application architecture, technology, architecture, whatever, what is in that landscape, what would be the potential risks and for each one of those risks, identify what are the affirmative actions that we have to do to validate verify How much of that risk could exist?

Or if it exists, how much it is serious? How much the impact can be great. And based on that kind of assessment, we can identify, say yes there is an issue or no, there is not an issue”

Yvan Desmedt responded by saying: “George, if I may just pick up on this for one minute, because I think what you're saying is exactly the problem that we face with the proposal that is put on the table for the Belgian measure, which is kind of putting it upside down. So, it is targeting what is referred to us as a higher risk vendor.

"But without doing that, what should be done is really kind of this bottom-up approach is to start with the risks and then identify the measures which you should be taking, and the risks require a complete, you know, understanding of how the networks are going to work, and where the potential cyber security risks lie within the network. And that is not what is on the table now for the 5G restrictions in Belgium.”

Shannon Brandao, an American attorney in European & international business law, said: “I've been following the struggles across the jurisdictions, I've been following them in the US and Canada, in the UK, and in various member states, as well as at the EU level.

"The US, for its part fears that Huawei equipment, or at least the government of China, in Beijing could use Huawei equipment to gather intelligence to steal trade secrets, to track down and punish dissidents, and to even go so far as to bring down entire networks to incapacitate other nations in times of crisis.”

Raquel Jorge Ricart, a Fulbright Fellow specialising in Public Policy, Strategy and the Governance of Technology, said: “One of the main problems with this is that when you look at the European Union you realise that if you want to define, for example, a country of origin, one of the main challenges, and one of the main needs for all EU member states is the fact that all of them implement the same standards.

"And one of the main problems in the case of Belgium is the fact that each country has been defined to the same criteria of what risk means and what security risk means, but especially the fact that no country is harmonising its own standards with those of its peers within the European Union. And in my perspective, they should be sure they lead to a stronger centralization of policies at the EU level if the European Union wants to do this properly.”

Belgium

Commission approves €23 million Belgian measures to support production of coronavirus-relevant products

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The European Commission has approved two Belgian measures, for a total of €23 million, to support the production of products relevant to the coronavirus outbreak in the Walloon region. Both measures were approved under the State Aid Temporary Framework. The first scheme, (SA.60414), with an estimated budget of €20m, will be open to enterprises that produce coronavirus-relevant products and are active in all sectors, except the agriculture, fishery and aquaculture, and financial sectors. Under the scheme, the public support will take the form of direct grants covering up to 50% of the investments costs.

The second measure (SA.60198) consists of a €3.5m investment aid, in the form of a direct grant, to the University of Liège, which aims at supporting the production by the institution of coronavirus related diagnostic tools and the necessary raw materials. The direct grant will cover 80 % of the investment costs. The Commission found that the measures are in line with the conditions of the Temporary Framework.

In particular, (i) the aid will cover only up to 80% of the eligible investment costs necessary to create production capacities to manufacture coronavirus relevant products; (ii) only investment projects that started as of 1 February 2020 will be eligible and (iii) eligible investment projects must be completed within six months after the grant of the investment aid. The Commission concluded that the two measures are necessary, appropriate and proportionate to fight the public health crisis, in line with Article 107(3)(c) TFEU and the conditions set out in the Temporary Framework.

On this basis, the Commission approved the measures under EU state aid rules. More information on the Temporary Framework and other actions taken by the Commission to address the economic impact of the coronavirus pandemic can be found here. The non-confidential version of the decisions will be made available under the case numbers SA.60198 and SA.60414 in the state aid register on the Commission's competition website.

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Belgium

European court opinion strengthens role of national data supervisors in Facebook case

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Today (13 January) Court of Justice of the European Union (CJEU) Advocate General Bobek published his opinion on whether a national data protection authority can start proceedings against a company, in this case Facebook, for failing to protect users’ data, even if it is not the lead supervisory authority (LSA).

The Belgian Data Protection Authority, (formerly Privacy Commission), commenced proceedings against Facebook in 2015 for the unlawful collection of browsing information without valid consent. The Brussels Court found that the case was within its jurisdiction and ordered Facebook to cease certain activities. This was challenged by Facebook, who argued that the new ‘one-stop-shop’ mechanism of the GDPR (General Data Protection Regulation) means that cross-border processing should be dealt with by the lead supervisory authority – in this instance the Irish Data Protection Commission, as the main Facebook HQ in the European Union is in Ireland (Facebook Ireland Ltd).

The EU’s Advocate General Michal Bobek agreed that the lead supervisor does have a general competence over cross-border data processing - and by implication other data protection authorities have more limited power to commence judicial proceedings, however he also found that there were situations where national data protection authorities could intervene.

One of the Advocate General’s (AG) main concerns appeared to be the danger of “under-enforcement” of the GDPR. The AG argues that the LSA should be seen more as a primus inter pares, but that national supervisors do not renounce their ability to act in a suspected infringement in every instance. The current governance relies on cooperation to ensure consistency in application.

It isn’t difficult to fathom his concerns. Anyone who has followed the litigation of Max Schrems over the last years in Ireland against Facebook’s EU-US data transfers would not be impressed by the less than exemplary performance of the supervisor and the Irish court system. It was serendipitous that on the same day that this opinion was published, the Irish Data Protection Commission finally settled its 7.5 year battle with Schrems.

The AG sees the potential danger of companies choosing their main place of establishment on the basis of the national regulator, with countries with less active or under-resourced regulators being preferred, as a type of regulatory arbitrage. He adds that though consistency was to be welcomed there was a danger that “collective responsibility could lead to collective irresponsibility and, ultimately, inertia”.

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COVID-19: Ireland, Italy, Belgium and Netherlands ban flights from UK

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A number of European countries have banned, or are planning to ban, travel from the UK to prevent the spread of a more infectious coronavirus variant.

The Netherlands and Belgium have halted flights, with Italy to follow suit. Trains to Belgium are also suspended.

Ireland is to restrict flights and ferries arriving after midnight (23:00 GMT) on Sunday. Germany will also stop flights from the UK from midnight.

The new variant has spread quickly in London and south-east England.

Prime Minister Boris Johnson on Saturday (19 December) introduced a new tier four level of restrictions, scrapping a planned relaxation of rules over the Christmas period for millions of people.

Top health officials said that there was no evidence the new variant was more deadly, or would react differently to vaccines, but it was proving to be up to 70% more transmissible.

Which countries have acted and how?

Within hours of the UK announcement on Saturday, the Netherlands said it would ban all passenger flights from the UK from 6h (5h GMT) on Sunday until 1 January.

Pending "greater clarity" on the situation in the UK, the Dutch government said that further "risk of the new virus strain being introduced to the Netherlands should be minimised as much as possible".

The country on Sunday reported a daily increase of more than 13,000 cases - a new record, despite tough lockdown measures being applied on 14 December.

Belgium is suspending flights and train arrivals from the UK from midnight on Sunday. Prime Minister Alexander De Croo told Belgian television channel VRT the ban would be in place for at least 24 hours as a "precautionary measure", adding "we will see later if we need additional measures".

In Ireland, urgent government talks were held on Sunday. Flights and ferries arriving from the UK will be restricted from midnight. The measures are expected to remain in place for an initial 48 hours before being reviewed.

In Germany, an order from the ministry of transport said planes from the UK would not be allowed to land after midnight on Sunday, although cargo would be an exception. Health Minister Jens Spahn said the UK variant had not yet been detected in Germany.

In France, news channel BFMTV reported that the government was "seriously" considering suspending flights and trains from the UK, and the government was "looking for European co-ordination".

"A decision will be announced during the day," the channel said.

Spanish Foreign Minister Arancha González said Spain also wanted a co-ordinated EU decision on the matter.

Austria is also planning a ban on flights from the UK, with details currently being worked out, Austrian media reported. Bulgaria has suspended flights to and from the UK from midnight.

What is the new variant?

In the UK, it was first identified in the middle of October from a sample taken in September.

Dr Catherine Smallwood, of WHO Europe, said that as of 20 December, the numbers in those countries were small, nine in Denmark and one each in the other two nations. But she said other countries had notified WHO of other variants "that also carry some of the genetic changes seen in the UK variant".

Coronavirus
The initial coronavirus has a lower "viral load", which makes it slower to be passed on

The new UK variant has been shown to spread faster than the original virus - up to 70% more transmissible based on modelling figures - but scientific details on the genetic changes, and how they could affect the behaviour of Covid-19, remain unclear.

Although there is no indication the variant will be more resistant to already-developed vaccines, the mutation does involve the spike protein of the virus.

This is the part that helps it infect cells - and also the part the vaccines have been designed to target. So although scientific experts have warned against an alarmist response, they also say it is essential to track the variant and try to stay ahead of the virus.

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